Mississippi defends 15-week abortion ban in appeals court

A federal court that rejected Mississippi's 15-week abortion ban should have let the state present evidence about whether a fetus experiences pain, an attorney for the state argued Monday.

Posted: Oct 7, 2019 5:48 PM

NEW ORLEANS (AP) — A federal court that rejected Mississippi's 15-week abortion ban should have let the state present evidence about whether a fetus experiences pain, an attorney for the state argued Monday.

But a lawyer for Mississippi's only abortion clinic said the Supreme Court has been clear that a woman has a right to have an abortion before the fetus is viable.

The arguments came during a hearing at the 5th U.S. Circuit Court of Appeals on a Mississippi law that would ban most abortions after 15 weeks of pregnancy. It's one of many laws pushed by conservative states in recent years, aimed at trying to persuade the increasingly conservative Supreme Court to further restrict the amount of time when abortion is legally available, or even to overturn the 1973 Roe v. Wade decision.

That decision said women have the right to terminate pregnancies until viability, when a fetus can survive outside the womb.

After Republican Gov. Phil Bryant signed Mississippi's law in 2018, the Jackson Women's Health Organization immediately sued. U.S. District Judge Carlton Reeves blocked the law from taking effect, writing that it "unequivocally" violates women's constitutional rights because it bans abortion weeks before viability.

Reeves wrote that viability must be determined by trained medical professionals, and the "established medical consensus" is that viability typically begins at 23 to 24 weeks after the pregnant woman's last menstrual period.

Mississippi and its supporters appealed to the 5th Circuit. Mississippi contends that Reeves overstepped his authority by only considering the case through the prism of viability.

"From that point on the outcome of this case was preordained," Paul Barnes, a special assistant attorney general, told the three-judge panel.

Barnes also suggested the 15-week standard had little effect on the Jackson clinic because they already refuse to perform abortions after 16 weeks.

"It is a prohibition for one week," Barnes said.

Hillary Schneller, a lawyer from the Center for Reproductive Rights which is representing the clinic, argued that the Supreme Court has been clear through decades of case law about a woman's right to an abortion before fetal viability.

"There is no dispute that 15 weeks is well before viability," she said.

At least one of the 5th Circuit judges seemed skeptical that viability should be the only standard. James C. Ho repeatedly asked whether a fetus feeling pain could ever be a factor in determining whether an abortion can be carried out. At one point, he asked if pain is "irrelevant."

Ho also questioned why discussion of the fetal pain question wasn't permitted during the lower court's proceedings.

"Where would we get that factual evidence if not at trial?" he asked.

The other justices — Patrick E. Higginbotham and James L. Dennis — asked few or no questions. Ho was nominated by President Donald Trump in 2017, Higginbotham by President Ronald Reagan in 1982 and Dennis by President Bill Clinton in 1995.

The 5th Circuit handles cases from Mississippi, Louisiana and Texas, and it's generally considered one of the most conservative appeals courts in the U.S.

Louisiana passed a 15-week abortion ban in 2018, but it takes effect only if the appeals court upholds the Mississippi law.

Even as the court fight continues over the 15-week ban, Mississippi lawmakers passed another law this year banning most abortions at about six weeks, when fetal cardiac activity can be detected. Reeves also blocked that law, saying it "smacks of defiance to this court." Attorneys are filing separate arguments about it to the 5th Circuit. The hearing Monday did not reference the 6-week ban.

Mississippi Coronavirus Cases

Data is updated nightly.

Confirmed Cases: 16769

Reported Deaths: 803
CountyConfirmedDeaths
Hinds110426
Madison77829
Lauderdale76569
Neshoba73945
Jones70933
Scott66312
Forrest60039
DeSoto59310
Rankin4639
Leake45512
Holmes44431
Copiah3344
Jackson31415
Attala31218
Yazoo2985
Newton2924
Oktibbeha28314
Leflore28238
Lincoln28131
Wayne2803
Monroe26925
Harrison2687
Lamar2525
Lowndes2529
Pearl River21231
Pike20411
Adams20416
Warren19910
Washington1998
Lee1978
Noxubee1956
Covington1832
Bolivar16911
Jasper1684
Clarke15619
Smith15611
Lafayette1564
Kemper15611
Chickasaw14314
Coahoma1324
Clay1254
Winston1241
Carroll11911
Marion1169
Claiborne1165
Yalobusha1116
Grenada1104
Lawrence1071
Simpson1050
Sunflower963
Tate931
Hancock9012
Marshall893
Union897
Itawamba897
Webster885
Panola873
Wilkinson859
Montgomery841
Jefferson Davis823
Tippah7611
Calhoun684
Walthall670
Amite651
Humphreys647
Tunica583
Prentiss533
Choctaw522
Perry513
Pontotoc493
Jefferson421
Tishomingo360
Stone320
Quitman320
Tallahatchie311
Greene301
George302
Franklin292
Alcorn191
Benton140
Sharkey70
Unassigned00

Alabama Coronavirus Cases

Confirmed Cases: 19387

Reported Deaths: 676
CountyConfirmedDeaths
Mobile2341123
Jefferson1927105
Montgomery190544
Tuscaloosa85316
Marshall7149
Franklin5939
Lee56334
Shelby53619
Tallapoosa43566
Butler43121
Walker3973
Elmore38110
Chambers36326
Madison3594
Unassigned3144
Morgan3141
Baldwin2969
Dallas2963
Lowndes26912
Etowah26512
DeKalb2603
Autauga2485
Coffee2401
Sumter2369
Houston2275
Pike2231
Bullock2197
Colbert1972
Hale19210
Russell1870
Barbour1831
Marengo1796
Lauderdale1752
Calhoun1693
Cullman1631
Wilcox1587
Choctaw15310
Clarke1492
St. Clair1372
Randolph1288
Dale1250
Marion12511
Talladega1215
Pickens1215
Limestone1100
Chilton1081
Greene955
Macon944
Winston920
Jackson863
Henry842
Covington831
Crenshaw803
Escambia793
Bibb761
Washington746
Blount641
Lawrence510
Monroe492
Geneva450
Perry430
Conecuh421
Coosa401
Cherokee383
Clay282
Lamar280
Fayette160
Cleburne151
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